Ian
Walker

|Partner

Ian Walker is one of Australia's leading insolvency and restructuring specialists. He has more than 30 years' experience in security enforcement for all types of creditors, banking litigation, and insolvency, restructuring and work out issues.

While Ian 's practice spans a wide range of industries and private and public sector clients, he has extensive experience in the financial services industry.

Ian advises insolvency appointees including liquidators, receivers, administrators and deed administrators on creditors rights, their powers and duties and on the full range of commercial and legal issues that face insolvency practitioners during the course of an insolvency administration. He also advises third parties affected by insolvency such as creditors and directors. This includes advising company directors on the governance issues that face them when insolvency is imminent and drafting schemes of arrangement and deeds of company arrangement involving large numbers of creditors and complex corporate structures.

Ian's broader practice encompasses litigation and commercial dispute resolution. He acts for government, statutory corporations and corporate clients on a range of litigious and non-litigious matters principally in the areas of contractual disputes and trade practices legislation. He has significant banking and finance litigation experience, acting for banks with regard to securities lending exposure.

Ian has also been involved in complex commercial litigation in the Superior courts, either Federal or State in contested litigation.

Ian advises a wide range clients including NAB, CBA, and Deloitte.

Ian is named as a leading individual for restructuring and insolvency in a number of independent legal guides, including Chambers Global, Chambers Asia Pacific,IFLR1000, Asia Pacific Legal 500 Guide, PLC Which Lawyer?, and Best Lawyers: Australia.

He comments regularly on insolvency law reform issues and is a member of the Law Council of Australia's Insolvency and Reconstruction sub-committee and is a member of the International Bar Association, Insolvency Section of the Australian Restructuring Insolvency and Turnaround Assosication (ARITA).

Ian wrote the Australian chapter in Expedited Debt Restructuring: An International Comparative Analysis published in 2007 by Kluwer Law International; the Australian Chapter in Cash Pooling and Insolvency – a Practical Global Hand Book, published in 2012 by Globe Law and Business; and the Australian Chapter in Financing Company Group Restructurings, to be published in 2015 by Oxford University Press.

Late last year, the High Court handed down its decision in Commissioner of Taxation v Australian Building Systems Pty Ltd (in liq) [2015] HCA 48. The ATO has recently issued a Decision Impact Statement (DIS) setting out its view of the consequences of the High Court's decision.

The High Court's decision in Commissioner of Taxation v Australian Building Systems Pty Ltd (in liq) held that, in the absence of an assessment, a liquidator is not required to retain funds from asset sale proceeds in order to meet a tax liability which could become payable as a result of a capital gain made on the sale. In doing so, the majority of the High Court affirmed the decision of the Full Federal Court and provided long awaited guidance to liquidators, receivers and administrators.

The High Court has granted special leave to appeal the decision in Commissioner of Taxation v Australian Building Systems Pty Ltd (in liq) [2014] FCAFC 133 which held that a liquidator is not required to retain funds from the proceeds of sale of an asset to pay tax before an assessment is issued.

This week the Full Federal Court unanimously overturned the decision to refuse ASICS's application to remove the liquidators of Walton Construction Pty Ltd, which had been appointed though a referral by the Mawson Group. The case presents a warning to insolvency practitioners who may find themselves overly dependent on a single source of referral work.

The Personal Property Securities Register (PPSR) does not require the person registering a security interest to file the underlying security agreement with the PPSR. As an electronic register that permits registration to occur online, the PPSR is accordingly open to obvious abuse where a person is prepared to lodge a sham financing statement.

A key decision has provided confirmation of the purpose and effect of a number of key provisions relating to perfection, priority and vesting rules under the Personal Property Securities Act 2009 (Cth).

On 13 February 2014, Justice Davies of the Federal Court of Australia handed down her decision in Australian Securities and Investment Commission v Franklin, in the matter of Walton Construction Pty Ltd (in liq), dismissing an application by ASIC to remove the liquidators of the subject companies because of an apprehension that they may lack independence and impartiality. The decision provides useful guidance for insolvency practitioners in determining whether they satisfy the requirement of independence and impartiality and what needs to be disclosed in a DIRRI.

A recent decision by the Supreme Court of New South Wales in the matter of Dalma No 1 Pty Limited; Application of Bruce Gleeson and David Shannon, joint and several liquidators of Dalma No 1 Pty Limited and anor, has highlighted an important limitation to section 560 of the Corporations Act 2001. Funds must now be advanced to the company to enable the employees to be paid – not advanced directly to employees.

On 27 June 2013, Justice Brereton of the Supreme Court of New South Wales handed down his decision in the matter of Maiden Civil (P&E) Pty Ltd; Richard Albarran and Blair Alexander Pleash as receivers and managers of Maiden Civil (P&E) Pty Ltd & Ors v Queensland Excavation Services Pty Ltd & Ors. This is the first Australian case to give substantial consideration to the priority of competing security interests under the Personal Property Securities Act 2009. The decision is a seminal one for insolvency practitioners and financiers, clarifying key provisions and rules under the PPSA.

A recent decision of the WA Court of Appeal in Carey v Korda [2012] WASCA 228, delivered on 15 November 2012, confirms receivers retain privilege in communications with solicitors even though they are agents for the insolvent company.

The Commissioner of Taxation has been successful in using a garnishee notice in a novel way to take priority over a secured creditor on the disposal of secured property. While garnishee notices issued after the commencement of a winding up have previously been ruled to be invalid, garnishee notices may in certain circumstances still prevent secured creditors receiving the proceeds of the sale of a secured asset.

An insolvency practitioner taking an appointment as a voluntary administrator under Part 5.3A of the Corporations Act will commonly not have the benefit of an indemnity from their appointor for the fees, liabilities and expenses which are incurred during the administration.

Can the liquidator of a landlord disclaim a lease so that the tenant no longer has any interest in the land? This question has now been answered with a resounding no. The issue was determined by the Supreme Court of Victoria in its decision on a preliminary question that was handed down last week, In the Matter of Willmott Forests Ltd (in liquidation) [2012] VSC 29 (Willmott).

The UK Supreme Court (formerly the House of Lords) recently handed down an important decision in Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd & Lehman Brothers Inc. The case concerned the validity of a 'flip clause' in some complex structured finance documentation. In essence, the "flip clause" provided that the priority creditor A enjoyed over creditor B would 'flip' or reverse in the event of the insolvency of creditor A.

On 2 June 2011, the Parliamentary Secretary to the Treasurer and Attorney-General jointly released a report on the regulation of insolvency practitioners, Options paper: a modernisation and harmonisation of the regulatory framework applying to insolvency practitioners in Australia.

Lenders will know that when they commence proceedings for possession of any mortgaged property they must serve a notice, including a copy of the originating process, on each on each "occupier" of the property: Uniform Civil Procedure Rules 2005 (Rules)), s. 6.8(1) (b).

But what if the borrower objects, saying that this will do them harm, because, for example, a tenant may become aware of their financial position? And what if the borrower disputes the lender's legal rights, and intends to defend the proceedings? Are there circumstances where this Rule will not be followed?

In our Alert of April 2010, we reported on the important decision of White J in the Supreme Court of New South Wales in Buzzle Operations Pty Ltd (In Liquidation) v Apple Computer Australia Pty Ltd [2010] NSWSC 233, which gave guidance as to when lenders and other third parties dealing with companies might become de facto or shadow directors.

As reported previously, on 23 June 2010, the Senate referred the amending Bill to its Standing Committee on Legal and Constitutional Affairs. Although the Committee's work was interrupted by the August election, it has now handed down its report.

Lenders and other third parties dealing with companies in distress are often concerned that by exercising legitimate legal rights they can become shadow directors, especially when the directors allege they have no choice but to do what the lender wants, because receivership is the only alternative.